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Full-Text Articles in Judges

The Vanishing Common Law Judge, Neal Devins, David Klein Sep 2019

The Vanishing Common Law Judge, Neal Devins, David Klein

Neal E. Devins

The common law style of judging appears to be on its way out. Trial courts rarely shape legal policymaking by asserting decisional autonomy through distinguishing, limiting, or criticizing higher court precedent. In an earlier study, we demonstrated the reluctance of lower court judges to assert decisional autonomy by invoking the holding–dicta dichotomy. In this Article, we make use of original empirical research to study the level of deference U.S. district court judges exhibit toward higher courts and whether the level of deference has changed over time. Our analysis of citation behavior over an eighty-year period reveals a dramatic ...


If The Judicial Confirmation Process Is Broken, Can A Statute Fix It?, Aaron-Andrew P. Bruhl Sep 2019

If The Judicial Confirmation Process Is Broken, Can A Statute Fix It?, Aaron-Andrew P. Bruhl

Aaron-Andrew P. Bruhl

No abstract provided.


Judicial Activism And The Problem Of Induction, Aaron-Andrew P. Bruhl Sep 2019

Judicial Activism And The Problem Of Induction, Aaron-Andrew P. Bruhl

Aaron-Andrew P. Bruhl

A comment on Suzanna Sherry’s "Why We Need More Judicial Activism."


Hierarchy And Heterogeneity: How To Read A Statute In A Lower Court, Aaron-Andrew P. Bruhl Sep 2019

Hierarchy And Heterogeneity: How To Read A Statute In A Lower Court, Aaron-Andrew P. Bruhl

Aaron-Andrew P. Bruhl

Is statutory interpretation an activity that all courts should perform the same way? Courts and commentators implicitly so conclude. I believe that conclusion is wrong. Statutory interpretation is a court-specific activity that should differ according to the institutional circumstances of the interpreting court. The U.S. Supreme Court is not the model all other courts should emulate.

I identify three kinds of institutional differences between courts that bear on which interpretive methods are appropriate: (1) the court’s place in the hierarchical structure of appellate review, (2) the court’s technical capacity and resources, and (3) the court’s democratic ...


Hierarchically Variable Deference To Agency Interpretations, Aaron-Andrew P. Bruhl Sep 2019

Hierarchically Variable Deference To Agency Interpretations, Aaron-Andrew P. Bruhl

Aaron-Andrew P. Bruhl

When courts review agency action, they typically accord agency decisions a degree of deference. As many courts and commentators have recognized, the law in this area is complicated because it features numerous standards of review, including several distinct regimes for evaluating agencies’ legal interpretations. There is, however, at least one important respect in which uniformity rather than variety prevails: the applicable standards of review do not vary depending on which court is reviewing the agency. Whichever standard governs a particular case—Chevron, Skidmore, or something else—all courts in the judicial hierarchy are supposed to apply that same standard.

This ...


Elected Judges And Statutory Interpretation, Aaron-Andrew P. Bruhl, Ethan J. Leib Sep 2019

Elected Judges And Statutory Interpretation, Aaron-Andrew P. Bruhl, Ethan J. Leib

Aaron-Andrew P. Bruhl

This Article considers whether differences in methods of judicial selection should influence how judges approach statutory interpretation. Courts and scholars have not given this question much sustained attention, but most would probably embrace the “unified model,” according to which appointed judges (such as federal judges) and elected judges (such as many state judges) are supposed to approach statutory text in identical ways. There is much to be said for the unified model—and we offer the first systematic defense of it. But the Article also attempts to make the best case for the more controversial but also plausible contrary view ...


A Brief History Of Judicial Appointments From The Last 50 Years Through The Trump Administration, Donald F. Mcgahn Ii Jun 2019

A Brief History Of Judicial Appointments From The Last 50 Years Through The Trump Administration, Donald F. Mcgahn Ii

William & Mary Law Review Online

This is the transcript of a lecture Mr. McGahn delivered at William & Mary Law School on November 19, 2018.